Technical and Further Education Commission T/A Tafe NSW
[2024] FWCA 2580
•11 July 2024
| [2024] FWCA 2580 |
| FAIR WORK COMMISSION |
| DECISION |
Fair Work Act 2009
s.185—Enterprise agreement
Technical and Further Education Commission T/A Tafe NSW
(AG2024/1994)
TAFE COMMISSION OF NSW TEACHERS AND RELATED EMPLOYEES ENTERPRISE AGREEMENT 2024
| Educational services industry | |
| DEPUTY PRESIDENT SLEVIN | SYDNEY,11 JULY 2024 |
Application for approval of the TAFE Commission of NSW Teachers and Related Employees Enterprise Agreement 2024
An application has been made by Technical and Further Education Commission T/A Tafe NSW (TAFE) for approval of an enterprise agreement known as the TAFE Commission of NSW Teachers and Related Employees Enterprise Agreement 2024 (the Agreement). The application was made pursuant to s.185 of the Fair Work Act 2009 (the Act). The Agreement is a single enterprise agreement. The Australian Education Union (AEU) was a bargaining representative for the Agreement. The Commission must approve the Agreement if satisfied that the requirements in ss. 186 and 187 are met.
Section 186(2)(d) requires the Commission to be satisfied the Agreement passes the better off overall test (BOOT). The test is found in s.193 of the Act and it is to be applied in accordance with s.193A. Under s.193 the Commission must be satisfied, as at the time the application for approval was made, that each award covered employee, and each reasonably foreseeable employee, for the agreement would be better off overall if the agreement applied to the employee than the relevant modern award. Here the relevant Award is the Services (Post-Secondary Education) Award 2020 (the Award). In applying the test, the Commission is required by s 193A to make a global assessment of whether each employee would be better off having regard to the terms of the agreement which would be more beneficial than the Award and the terms which would be less beneficial. In making that assessment, the Commission must, in accordance with s 193A(3), give consideration to any views expressed by the employer or a bargaining representative for the agreement. I raised several matters with the applicant which in my view required a response before I could be satisfied that the BOOT is met.
TAFE provided classification matching to demonstrate the Agreement rate were higher than the Award. A complete set of classification matching for casual teachers was not provided. Based on a thorough matching of casual hourly rates it appeared that rates for Casual Part Time Sessional Teachers, Duties Other than Teaching (DOTT) and Contract Teaching Duties may fall below the Award.
TAFE responded to these matters by first explaining, in relation to the Sessional Teacher employment classification in the Agreement, it does not engage employees as sessional teachers as casuals because sessional teachers cannot be employed under the Agreement as casual employees. Sessional employment under the Agreement is a separate and distinct category of employment and the conditions of that employment arrangement are determined pursuant to clause 38 of the Agreement. TAFE submitted that the more accurate hourly rate comparison for a Sessional Teacher employed under the Agreement is Full-Time & Part-Time Teachers and Tutors/Instructors in the Award, where the hourly rates under the Award range from $29.44 (Level 1) to $38.54 (Level 12). The applicant indicated that the Sessional Teacher hourly rate under the Agreement is between 67% and 118% higher than the hourly rates in the Award. Secondly, the applicant acknowledged that the rate in the Agreement payable to Part-Time Casual Teachers when performing DOTT is below the Award rate applicable to the Level 11 and Level 12 hourly rates, however it submits that these employees are better off overall given the substantially higher rates of pay that are payable when performing teaching duties and co-ordination/consultation duties. Further to this submission, it outlined that Part-Time Casual Teachers have access to paid sick leave when certain conditions are met pursuant to Clause 39.7 of the Agreement.
In respect of the rates for the third classification, Contract Teaching Duties, the applicant submits that rate should not be compared to casual rates of pay in the Award, and instead needs to be read in conjunction with Clause 40 of the Agreement which sets out the conditions of employment specific to contract teachers employed at TAFE Digital. The applicant explained that clause 40.3.2 reflects a longstanding agreement between TAFE NSW and the AEU NSW Teachers Federation for the marking of each unit of work to be on a piece rate and not on a casual basis. The applicant further explained that this means the $25.10 rate is per unit and each unit is equivalent to 25 minutes as set out in clause 40.3.2 in the Agreement which is a maximum time duration for the completion of each unit of work and that each unit of work may be completed in a shorter amount of time by the Contract Teacher with no obligation to perform the full 25 minutes of work, which is in keeping with piece rates and not casual employment. For further clarity, the applicant noted that contract Teachers are only employed as off-site markers to mark and provide feedback on work submitted by students enrolled in TAFE Digital and not to perform work on an hourly basis in the way that a casual employee does.
A further matter raised included in respect of the payment of overtime to part time employees and whether, depending on the frequency of additional hours worked, some employees may not be better off. Clause 35.10 of the Agreement provides that permanent employees can elect to take TOIL instead of payment for overtime but provides that where they do not elect to do so ‘the Employee shall be paid overtime rates in accordance with the Agreement’ however the agreement appears to be silent on overtime penalties and triggers. In response the applicant explained the broader historical context associated with clause 35.10 in terms of the variations made to what were then State Awards by general orders made by the Industrial Relations Commission of NSW. In any case the applicant submits that the provision is not relevant in the context of the proposed Agreement as there are no overtime penalties specified as such work is expressly compensated for, by amongst other things, the additional leave provided under the Agreement.
The applicant further explained that employees would not generally be required to work overtime or on weekends and submits that for the purposes of s.193A(6) of the Act, it is not foreseeable that, having regard to work performed at TAFE NSW, that there is a likelihood that there would be significant amounts of overtime or weekend work. In its submissions the applicant also referred to the overtime provisions as being subject to the protections afforded by s.62(3)(d) of the Act which provides, amongst other things, that, in determining whether an employee can work additional hours, account is taken of whether the employee is to be compensated for working those hours. As the applicant also indicated, a primary consideration I must have regard to in my assessment as to whether the Agreement passes the BOOT is the views of any bargaining representatives. I note that the AEU are supportive of approval.
I raised a further matter in respect of the Agreement appearing to be silent on most employees receiving penalties for work on a Saturday within and outside the spread of ordinary hours, and work on Sunday and Public Holiday provided for at clause 22 of the Award. There was correspondence with the applicant as to the rates of pay that employees will receive if required to work on these days. In response the applicant contended that having regard to its submissions and the low incidence of work that would attract these penalties that, along with the other benefits under the Agreement, the rates under the Agreement are sufficiently high to compensate employees.
The applicant sets out a range of other more beneficial terms that in its view offset any detriment associated with the less prescriptive requirements around the payment of overtime and penalties. It submits that when taking a global rather than a line-by-line approach employees are better off overall. The applicant acknowledges that General Staff Levels 8 and 9 are not entitled to payment of overtime under the Award. In respect of employees that match to the classification of General Staff Level 7 and below the applicant refers to the following provisions:
a.The ordinary hours of work for employees is 35 hours per week under the Agreement in comparison to 38 hours per week under the Modern Award.
b.Counsellors, Advanced Skills Counsellors, Senior Counsellors are entitled to 3 weeks non-attendance time per year in lieu of overtime (Clause 35.4.2 of the Agreement) and rates of pay between 34%-75.38% higher than the Modern Award.
c.Special Program Co-Ordinators are entitled to 6 weeks non-attendance time per year in lieu of overtime (Clause 35.4.2 of the Agreement) and rates of pay between 34.74%-82% higher than the Modern Award.
d.Education Support Officers are entitled to rates of pay 38% higher than the Modern Award. Assessors are entitled to rates of pay 49% higher than Modern Award. These are the only classifications that are not expressly compensated for overtime by the provision of additional leave. These classifications comprise a very small proportion of TAFEs workforce and an examination of payroll records over the past 12 months shows that no one in these classifications has worked outside of their contracted hours or on weekends.
e.Cluster Managers, Manager Education and Training Resource Centres, Principal Education Officers, Program Managers, Curriculum Managers, Quality Assurance Co-ordinators, Chief Education Officers, Senior Education Officers and Senior Counsellors negotiate their hours of work as part of a pre-planned program (Clause 34.3) and are entitled to rates of pay between 34.74% and 92% higher than the Modern Award.
f.Learning Co-ordinators and Assistant Directors employed at Bradfield College have access to 4 weeks non-attendance and the two-week paid shut down in lieu of overtime and rates of pay between 25% and 64% higher than the Modern Award.
Given the explanations provided by the applicant, the undertakings provided, and having regard to s.193A(6), and in particular the types of employment and patterns of work of the employees covered by the Agreement, I am satisfied that the BOOT is met. I note that should the work patterns, kinds of work or types of employment under the Agreement change, an application under s.227A is available for a reconsideration of the BOOT.
The Agreement does not cover all of the employees of the employer, however, taking into account the factors in sections 186(3) and (3A) I am satisfied that the group of employees was fairly chosen.
Having regard to the material contained in the application and filed in relation to it, including submissions of the applicant as to intended operation of the Agreement, I am satisfied that each of the requirements of ss.186 and 187 are met.
The Australian Education Union, being a bargaining representative for the Agreement, has given notice under s.183 of the Act that it wants the Agreement to cover it. In accordance with s.201(2) I note that the Agreement covers the organisation.
The Agreement was approved on 11 July 2024 and, in accordance with s.54, will operate on 18 July 2024. The nominal expiry date of the Agreement at clause 2.2 is 31 January 2025.
DEPUTY PRESIDENT
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